Page:Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin.pdf/38

Rh sovereign immunity. They are a unique form of government—and they alone are nowhere mentioned.

The Court offers two responses. Above the line, it asks why Territories are encompassed within §101(27)’s immunity-abrogation provision if they share the same status of Tribes—neither foreign nor domestic. The answer, of course, is that Congress expressly listed Territories; it did not do the same for Tribes. Nor do I see how Congress’s choice to include Territories supports the Court’s suggestion that the term “other foreign or domestic government” clearly covers all governments. To the contrary, under the Court’s interpretation of that term, the express inclusion of Territories becomes curious surplusage. And to the extent the Court thinks Congress mentioned Territories just to be doubly clear that the term “other foreign or domestic government” really does cover all governments—adopting a kind of belt-and-suspenders approach—isn’t it odd that Congress left one of the most notable types of sovereigns (a key part of its “belt”) at home?

Below the line, the Court simply asserts (without analysis or support) that “the terms ‘foreign’ and ‘domestic’ are two poles on a spectrum.” It does not grapple, however, with the many decisions of this Court discussed above that contradict that premise—and that do so in the precise context of Indian law (in general) and sovereign immunity (in particular). See. Nor does it grapple with the reality that, even if the terms were two poles on a spectrum, many Justices of this Court have suggested that Indian Tribes do not fall along that continuum at all and are instead “just what they [are], Indian [T]ribes.” Cherokee Nation, 5 Pet., at 27 (Johnson, J., concurring). Others of course have disagreed. But that disagreement is no help to the Court under our clear-statement rule. It is dispositive the other way.